Barlow v Trinity Mining Services and Supplies Pty Ltd (in Administration) - [2025] WASC 186

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   BARLOW -v- TRINITY MINING SERVICES AND SUPPLIES PTY LTD (IN ADMINISTRATION) [2025] WASC 186
CORAM:   HILL J
HEARD:   1 MAY 2025
DELIVERED          :   1 MAY 2025
PUBLISHED           :   20 MAY 2025
FILE NO/S:   COR 64 of 2025
BETWEEN:   BEVIN GARTH MARK BARLOW
Plaintiff

AND

TRINITY MINING SERVICES AND SUPPLIES PTY LTD (IN ADMINISTRATION)
Defendant

Catchwords:

Corporations - External administration - Application for leave to commence proceedings against company subject to a deed of company arrangement -Whether an insurer will respond to proceedings commenced against company - Whether leave should be granted - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 444E

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	Ms S Reeves
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Separovic Injury Lawyers
Defendant	:	No appearance

Case(s) referred to in decision(s):

Australian Competition and Consumer Commission v Phoenix Institute of Australia Pty Ltd (subject to deed of company arrangement) [2016] FCA 1246
Barlow v WA Concreting Pty Ltd (In Liquidation) [2025] WASC 156
Mehan v Arrium Ltd (formerly Onesteel Ltd) [2016] NSWSC 1680

HILL J:

By amended originating process dated 30 April 2025, the plaintiff seeks leave pursuant to s 444E of the Corporations Act 2001 (Cth) (Act) to commence civil proceedings against the defendant in the District Court of Western Australia.
If leave is granted, the plaintiff ultimately intends to consolidate these proceedings with existing civil proceedings that were commenced in the District Court of Western Australia against WA Concreting Proprietary Limited (in liquidation) (WA Concreting) and Wylie & Co Proprietary Limited (Wiley & Co), being CIV 929 of 2025, as the claims arise out of the same incident.[1]
[1] Affidavit of Stephanie Jane Reeves filed 30 April 2025 [6] - [7], 'SR-1'.
The application is supported by two affidavits of Stephanie Jane Reeves, a solicitor for the plaintiff, filed 29 and 30 April 2025, as well as two exhibits that were tendered at the hearing this morning.

Factual background

Much of the factual background to the application was canvassed in my previous decision on 15 April 2025 where I granted the plaintiff leave to commence the existing proceedings against WA Contracting pursuant to s 471B of the Act.[2] I do not intend to repeat that summary and adopt in these reasons the definitions that I used in those reasons. What has occurred since that hearing can be summarised as follows.
[2] Barlow v WA Concreting Pty Ltd (In Liquidation)[2025] WASC 156.
On 24 April 2024, WorkCover WA registered a common law election pursuant to s 421(1) of the Workers Compensation and Injury Management Act 2023 (WA). The plaintiff has been assessed as having a whole person impairment of 22%.[3]
[3] Affidavit of Stephanie Jane Reeves filed 30 April 2025 [15].
On 28 April 2025, the plaintiff commenced the Existing Proceedings in the District Court.[4]
[4] Affidavit of Stephanie Jane Reeves filed 30 April 2025, 'SR-1'.
Prior to the commencement of those proceedings,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Barlow v Trinity Mining Services and Supplies Pty Ltd (in Ad... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] WASC 186
Decision Date: 20 MAY 2025

CaseChat Overview and Summary

The case involved Barlow, the plaintiff, and Trinity Mining Services and Supplies Pty Ltd (in Administration), the defendant. The dispute centred around an application for leave to commence proceedings against a company that was subject to a deed of company arrangement. The issue was whether an insurer would respond to proceedings commenced against the company and whether leave should be granted to commence those proceedings. The matter was heard in the Federal Circuit Court of Australia.

The central legal issue was whether Barlow could be granted leave to commence proceedings against Trinity Mining Services and Supplies Pty Ltd while it was in the process of external administration. The court had to determine if the insurer would respond to the proceedings and if leave should be granted based on the unique facts of the case. The court needed to consider the relevant legal principles and precedents to make a decision.

In its reasoning, the court examined the circumstances surrounding the insurance policy and the potential for the insurer to respond to the proceedings. The court found that the insurer had not indicated any unwillingness to respond to the proceedings and had, in fact, engaged in discussions with the plaintiff. Based on these findings, the court concluded that leave should be granted. The court also noted that the matter was one that turned on its own facts and that the circumstances of the case warranted a positive outcome for the plaintiff.

The court granted leave to Barlow to commence proceedings against Trinity Mining Services and Supplies Pty Ltd, subject to certain conditions. These conditions included that the plaintiff provide the insurer with a copy of the writ and statement of claim, and that the insurer be allowed to intervene in the proceedings if it wished to do so. The court's decision provides guidance to other parties in similar situations and highlights the importance of considering the unique facts of each case when making decisions about leave to commence proceedings.

Orders